Did Accused Kandahar Killer Sgt. Bales Act Alone?

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Raymond Bonner

Did the U.S. soldier accused of a Kandahar massacre act alone?

October 29, 2012

At around 3 a.m. on March 11, if the United States government is to be believed, a hero turned into a monster. Staff Sgt. Robert Bales, a family man and decorated soldier thrice awarded the Army medal for good conduct, slipped out of his military base in southern Afghanistan and, for reasons unknown, began firing indiscriminately from house to house as he carved a path of mayhem through two villages. By the time he stopped shooting, 16 civilians—mostly women and children—were dead; the bodies were then burned. He had been drinking, the government maintains, and taking drugs. If convicted, he will stand alongside Lt. William Calley as one of the worst perpetrators of American military atrocities in modern times.

But when Bales, 38, appears at a preliminary hearing on a military base near Tacoma, Wash., next month, a startling alternative theory of the case will emerge: Bales did not act alone. “There are witness statements that there was more than one shooter,” said Bales’s lead civilian lawyer, John Henry Browne, who asserts the government lacks evidence to prove his client’s guilt.

Browne, who maintains Bales cannot remember all the events of that night, possibly due to an untreated brain injury suffered in the line of duty in Iraq, will not provide any details about these statements,”for fear of being thrown off the case” by the Army for disclosing still-classified information.

But several villagers contacted by Newsweek agree that Bales had company during the shooting spree.

“Two Americans came into the room, and the kids started screaming,” said Bibi Massoma, whose husband, Mohammed Dawood, and children were murdered. The men entered around 3 a.m. One of the soldiers grabbed her husband and forced him to stand in the doorway, she said; a second soldier shot him. His brains were scattered in the doorway. Massoma later gathered them in a plastic bag. One of the soldiers stuck a pistol into the mouth of 6-month-old Hazaratullah, put his finger to his lips and said if the child did not stop crying he would kill all of them—which he proceeded to do. Bales is charged with the murder of Dawood and six of his kids.

Others in the area have questioned whether a lone gunman could have possibly been responsible for all the carnage. The killer would have had to sneak off a base populated by Special Forces troops and heavily guarded, both by manned patrols and electronic surveillance, and hit two villages in quick succession—even though the villages, located in the Panjwai district of Kandahar province, are roughly a 30-minute walk apart.

“It seems not one person and it really seems that the massacre was done by two groups, one in each village,” said Muhammed Wazir. He was away on the night of the attacks, but 11 members of his family were killed, including his mother, a brother and his wife, and two sons, ages 15 and 9. “One man can’t kill that many people in one night in a short time,” he went on. And how, he asked, could one man gather up 11 bodies, put them in a pile and burn them, as the government has charged?

Another villager, Ahmad Shah Khan, was quoted in an Associated Press dispatch, offering further support for the multiple-shooter theory. A few days before the murders, an IED had exploded in the area, killing and wounding several American soldiers. Shortly after, American and Afghan soldiers had arrived in the village, lined the men against the wall and threatened to kill them and their children, Khan told the AP. “Now they have gone and taken their revenge,” he said following the killings.

Of course, even hard evidence of another gunman would not get Bales off the hook legally. And Browne is a long way from even having the chance to try to establish such proof; the upcoming hearing, slated for the day before Election Day, is merely a chance for the government to lay out its case, and for the defense to do discovery; Bales’s actual day in court is far away. (A military spokesman at Joint Base Lewis-McChord, where the hearing will be held, declined to comment, saying “it would be inappropriate” to speak to “an ongoing investigation.”) But the mere suggestion that what happened on that bloody March night was not the work of a rogue soldier, but rather a concerted effort, raises the stakes for the military significantly. That suggestion could, in fact, help Browne compel a settlement for his client, who faces the death penalty if convicted—and ensure that the public never learns what really happened that night.

Browne, who stands 6 feet 6 and typically sports long hair and a goatee, is no stranger to tough cases. In fact, that’s the reason Bales sought him out as his civilian counsel shortly after being shipped to Kandahar base upon his arrest. (In the military-justice system, he is automatically assigned a government defense lawyer.) Bales, whose home is in Lake Tapps, near Tacoma, knew of Browne from his handling of the case of the “Barefoot Bandit,” Colton Harris-Moore, who went on a headline-grabbing spree of robberies across the Pacific Northwest. Harris-Moore faced 20 years in prison for his sins—stealing cars, small planes, a boat, and breaking into dozens of homes. Browne helped get his sentence reduced to just seven years behind bars.
Afghanistan Suspect Profile

Bales was drinking and using drugs the night of the murders, the government says. (Spc. Ryan Hallock via AP)

In the 1980s, Browne represented Benjamin Ng, who was accused of killing 13 in a gambling den in Seattle’s Chinatown. Ng was convicted, surprising no one—including his lawyer. “Point blank, he shot them,” Browne recalls. “Still ranked as one of the worst massacres in the U.S.” But Browne worked wonders during the penalty phase. “I never thought we could save his life, but we did,” he says. Ng dodged the death penalty.

Browne’s most infamous client could not make the same claim; serial killer Ted Bundy was executed in 1989. Browne says he’s working on a book about his conversations with Bundy, who confessed to murdering 30 women in seven states. “Ted told me things that he’s never told anybody,” Browne said on a Washington state Fox-TV affiliate this spring. “He told me he killed more than 100 people, and not only women.”

Browne brings a special passion to his representation of Sgt. Bales. He was an ardent antiwar protester during Vietnam. “I would have been a draft dodger, gone to Canada or Mexico,” he says, before discovering there was an easier way to avoid combat when he went for his physical. “If you’re over 6 feet 6,” you are not qualified to go shoot short people,” Browne says. Just cresting that height, he was given a 4-F deferment. But he feels a duty to those who have gone on to serve. “I have grown to feel that I have a responsibility to Sgt. Bales. I believe the entire country has a responsibility to him, and to all the soldiers,” Browne says. “Whether he did it or not, he’s our responsibility. We created him.” The lawyer uses language unprintable in a family periodical when describing his views of the wars in Iraq and Afghanistan.

As he prepares for the upcoming hearing, Browne plans to put the war itself on trial.

The military’s reliance on an exhausted fighting force—Bales himself was on his fourth tour of duty when the Kandahar killings took place—put an enormous strain on even the most resilient warriors.

Browne has spoken about the toll the multiple deployments had taken on Bales and his family—and their disappointment when Bales’s bid for a promotion, which would have spared him this last hitch in the field, did not pan out. “It is very disappointed [sic] after all the work Bob has done and all the sacrifices he has made for his love of his country, family and friends,” Bales’s wife, Karilyn, wrote on her personal blog back in March 2011. “I am sad and disappointed too, but I am also relieved, we can finally move on to the next phase of our lives.” Karilyn, a onetime bank project manager and communications-company employee who married Bales in 2005, was putting their house on the market when she learned of the accusations against her husband. “I just don’t think he was involved,” she told the Today show in an interview shortly after the killings came to light, adding that the charges were “unbelievable to me … This is not what it appears to be.”

The government has accused Bales of drinking, and the possession and use of stanozolol, a performance-enhancing steroid which, under federal drug laws, can only be taken with a doctor’s prescription. (Bales has had two arrests—both involving drunken scuffles—while stateside in Washington.)

“How did he obtain the drugs?” Browne asks, providing a glimpse into his legal strategy. This was a small base for Special Forces operations. Did they have a foot locker filled with drugs? Browne points to numerous reports in the media about the high use of drugs by soldiers in stressful combat situations, to keep them awake, alert, and strong.

Browne has also spoken publicly about how his client may suffer from PTSD—and an untreated concussion Bales may have sustained during the Iraq war.

Should he press the point, he may find support in an investigation into allegations that the medical facility where Bales was stationed at the time of the attacks has a history of downgrading PTSD diagnoses and rushing traumatized soldiers back to the battlefield.

The preliminary hearing, known as an Article 32 in military law, is expected to last two weeks, and will include the taking of testimony of Kandahar villagers via Skype. Browne will be there to cross-examine them. Some of the villagers whom the government wants to testify have said they will not do so, for fear of their own safety, Browne said.

The hearing officer will have two recommendations to make. Is there enough evidence to proceed to a court-martial, at which time, the government would have to prove Bales guilty beyond a reasonable doubt? If so, should it be a capital case?

The government is expected to recommend a court-martial, even Bales’s supporters concede. A likely scenario: Browne enters a guilty plea on behalf of his client, in exchange for the government declining to pursue the death penalty. Military prosecutors know full well that a failure to pursue the maximum sanction could spark outrage in Afghanistan at a delicate juncture, as the U.S. seeks to wind down the war. But pushing on to a death-penalty proceeding risks spilling potentially uncomfortable truths about the way this war has been prosecuted into public view.

As the date draws near, Browne knows his flamboyant history could pose an issue in the buttoned-down confines of a military jury room. He’s cut his mane of hair; “I’ll keep it short,” he says, but “not military short.” Despite the potentially incendiary nature of his accusations, he expects a fair shake: “I’m very impressed with the military men I’ve met.”